Kings College Hospital NHS Foundation Trust v X and Y
Summary
This case concerned an application by Kings College Hospital for permission to withdraw life sustaining treatment from a young man, X, who was 27 years old. The application was opposed by members of his family, with X’s father, Y, acting as a family spokesman.
X had been involved in a car accident in January 2023 which had left him with catastrophic brain injuries following a prolonged period of hypoxia. He also sustained damage to his cervical spine and spinal cord. He was resuscitated by paramedics at the scene of the accident, and admitted to ICU. His treating clinicians, and those from whom they had sought second opinions, considered that he was in a persistent vegetative state (PVS). The Trust considered it was not in his best interests to continue to receive treatment, as they did not consider that there was any prospect of his recovery. The judgment summarises that “[h]e is kept alive by mechanical ventilation, artificial nutrition and hydration and supportive round the clock nursing care involving washing, turning and suctioning of tracheal secretions” (paragraph 2). The Official Solicitor considered that this was a finely balanced case, but ultimately supported the Trust’s application.
Y and other family members wanted X to have more time, and felt that X was responding to stimuli, including opening his eyes and moving his head in response to requests. They felt that X would have wished to continue to have life-sustaining treatment, and would wish to “continue to fight to remain with his family” (paragraph 3). The judgment notes the love of X’s family, and their mutual devotion to each other. Family members had been granted leave to seek expert evidence, but had ultimately not been able to obtain it, and did not apply to adjourn the hearing to make further attempts to do so.
The medical evidence was effectively unrebutted, and concluded that X had no function above or below his brainstem. The judgment noted that “there is a limited amount of function which controls his blood pressure and heartrate, but there is no ability for him to regain consciousness, or to move again” (paragraph 14). X had been unconscious throughout his time in ICU, and completely dependent on a ventilator to breathe. He had no response on an EEG to painful stimuli, over a six-week period. His pupils had stopped reacting to light and had become fixed and dilated. His physical state appears to have also been negatively impacted, with medical evidence that “[h]e is colonized with resistant bacteria. His arms and legs are in contractures. He has lost a lot of muscle mass and is not able to move. His skin is fragile and he has developed skin ulcers which are difficult to heal” (paragraph 18). He was considered to have a short life expectancy, and be at risk of infection due to ongoing mechanical ventilation. Second opinion evidence from several specialists (including those who had had sight of videos taken by X’s family) confirmed the views of the treating team.
X’s family felt strongly that X “would not want to give up on life. He is not the sort of person to let go. Why I say that is because he would say he wants to live for his family, and especially for his children” (paragraph 31). Y produced four videos taken while X was in ICU in which Y felt demonstrated that “X moves his head, following requests to do so from his father, and is able to open his eyes. These videos were taken between the end of May to end of June. He confirms that although X was not a practising Christian he was brought up in the Christian faith, which is important to his wider family and that faith does not support the Trust’s application as they believe people should go naturally” (paragraph 32). X’s family also felt that he had opened his eyes in response to hearing his grandmother’s voice. Y felt that X “has some level of consciousness and disagrees with the assessment that X’s pupils are fixed and dilated, he has observed X look at him” (paragraph 34). Y’s request was that X “be given more time” (paragraph 35). The evidence of the medical staff was that what his family had seen was “reflexive, and consistent with X being in a vegetative state. The movements are not purposeful or discriminating behaviour” (paragraph 39).
Theis J granted the Trust’s application. She accepted the medical evidence that X was in a Persistent Vegetative State, and further accepted the medical evidence that the evidence relied on by X’s family were “spontaneous and reflexive movement which is compatible with a vegetative state, rather than any level of consciousness by X” (paragraph 48). Theis J accepted the strong presumption of sustaining life, and acknowledged that X would likely have wished to be with his family, and that sustaining life would be in keeping with his Christian religious beliefs. Theis J noted that there was no direct evidence that X was in pain, but considered that
51…By definition there are intrinsic burdens to being cared for on ICU and the interventions that are necessary in such care. In this case there is evidence of relative stability in one sense due to the interventions, but there is equally evidence of considerable instability regarding X’s condition as part of his care, such as the frequent drops in heart rate.
52. I agree with the final analysis of the Official Solicitor that in the light of the evidence regarding the X’s medical condition, his lack of awareness and factoring in the likely wishes he would have to be with his family, the strong presumption of sustaining life and the limited evidence of pain, there is, in my judgment, overall no benefit to X in continuing the treatment, due to his lack of awareness and the bleak medical prognosis. In those circumstances, his best interests are met by the withdrawal of treatment.
Comment
This tragic case includes a helpful discussion of (1) the perceptions of family members that a person is reacting, and the medical evidence as to why this might be occurring; and (2) where a person’s best interests may lie where there is no evidence that a person is in pain (an issue covered in some depth in Guy's And St Thomas' NHS Foundation Trust v A & Ors [2022] EWHC 2422 (Fam)). X’s family perceived various movements as being reactive to their presence; these were reviewed by a number of specialists, who were consistent in their views that these were spontaneous. The family’s evidence (including video evidence) was put before the court, but ultimately (and with the assistance of medical evidence on point) did not persuade Theis J that X was able to react to this surroundings.
